| People v Figueroa |
| 2019 NY Slip Op 02836 [171 AD3d 549] |
| April 16, 2019 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Ames Figueroa, Appellant. |
Christina A. Swarns, Office of the Appellate Defender, New York (Rosemary Herbert ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jennifer Westphal of counsel), forrespondent.
Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered September23, 2016, convicting defendant, after a jury trial, of burglary in the first degree and robbery in thefirst degree, and sentencing him, as a second felony offender, to concurrent terms of 10 years,unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Moreover,we find that the evidence was overwhelming. There is no basis for disturbing the jury'sdeterminations concerning identification and credibility. The victim made a prompt and reliableidentification of defendant, who was wearing the same distinctive clothing that the victim hadobserved during the robbery. In addition, the evidence supported the inference that whendefendant encountered the police, he discarded the victim's phone and earphones, which thepolice found nearby. The victim's credible testimony also established that defendant displayedwhat appeared to be a firearm.
The victim's statements during a 911 call did not qualify under the present sense impressionexception to the hearsay rule (see People v Brown, 80 NY2d 729, 732-736 [1993]),which was the only theory under which they were offered and received. The 911 call was notsubstantially contemporaneous with the robbery, but was made after an intervening chain ofevents that permitted some time for reflection (see People v Vasquez, 88 NY2d 561,578-579 [1996]; see generally Guide to NY Evid rule 8.29, Present Sense Impression,http://www.nycourts.gov/judges/evidence/8-HEARSAY/8.29_PRESENT%20SENSE%20IMPRESSION.pdf). Nevertheless, the error in admitting the 911 call was harmless, in light of theoverwhelming evidence of guilt, and because "prior consistent statements are notably lessprejudicial to the opposing party than other forms of hearsay, since by definition the maker of thestatement has said the same thing in court as out of it, and so credibility can be tested throughcross-examination" (People vLudwig, 24 NY3d 221, 230 [2014]).
Defendant did not preserve his claim that the court should have excluded portions of the 911call in which the victim's mother, who was not a witness, relayed information provided by herson, and we decline to review it in the interest of justice. As an alternative holding, we concludethat the mother's comments were inadmissible, but that there was no possibility of prejudicebecause the court's limiting instructions told the jury to disregard these parts of the call in that themother was not a witness, as well as because of the overwhelming evidence already noted.
The court's charge on reasonable doubt does not warrant reversal. Although the CriminalJury Instructions contain the "preferred phrasing," the court's charge, viewed as a whole,adequately conveyed the appropriate standard (People v Cubino, 88 NY2d 998, 1000[1996]; see also People v Radcliffe, 232 NY 249, 254 [1921]).
We perceive no basis for reducing the sentence. Concur—Renwick, J.P., Gische,Kapnick, Kern, Moulton, JJ.